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2004 DIGILAW 89 (CAL)

AMITA DUDHORIA v. GOUTAM DUDHORIA

2004-02-10

D.K.SETH, RAJENDRA NATH SINHA

body2004
D. K. SETH, J. ( 1 ) THE order dated December 2,1997 passed in GA No. 3668 of 1997 and GA No. 4167 of 1997 in CS No. 384 of 1977 by the learned Single judge is under challenge in this appeal APO No. 596 of 1997 (APOT No. 742 of 1997 ). By the said order the appellant's application for setting aside the sale and the respondent's application for confirmation of the sale had since been disposed of by affirming the sale and dismissing the application for setting aside the sale. ( 2 ) THE suit CS No. 384 of 1977 out of which the present proceeding arises was a suit for partition instituted in 1997. The shares were declared on 27th July, 1979. Except three properties all properties were divided in two lots and the respective lots were allotted to the respective parties according to the respective share. The parties all along claiming moiety share in between the two groups descending from two predecessors. These three properties were allowed to be put on sale in between the parties without valuation. The Commissioner of Partition had given notice to the respective learned Advocate-on-record for the parties. The parties were being represented by their respective learned Advocate-on-record. On the crucial date one Ms. Sima Dudhoria, one of the plaintiffs, appeared along with the learned Advocate-on-record for the plaintiffs and submitted that she was authorized by the other plaintiffs. But, however, in the auction she declined to bid. On the allegations that during that point of time the appellant and the other plaintiffs were out of Calcutta and were unable to keep track of the proceedings, and after having returned to Calcutta the appellant came to learn about the development which she discovered through correspondence from her learned Advocate-on-record, she had made this application for setting aside the sale. The other plaintiffs did not join here in the application. But, however, one of the other plaintiffs has preferred the other appeal APOT No. 71 of 1998 against the same order dismissing the application for setting aside the sale and allowing the application for confirmation of sale. She is plaintiff No. 1 represented by Mr. Pratap Chatterjee supporting the appellant in this appeal. The other appeal APOT no. 71 of 1998 filed by the plaintiff No. 1 is also taken up for hearing along with the present appeal. She is plaintiff No. 1 represented by Mr. Pratap Chatterjee supporting the appellant in this appeal. The other appeal APOT no. 71 of 1998 filed by the plaintiff No. 1 is also taken up for hearing along with the present appeal. ( 3 ) THE learned Counsel for the appellant in this appeal had assailed the order on two grounds : viz: (1) that there was no notice on the plaintiff No. 4 ms. Amita Dudhoria or the plaintiffs, as the case may be, and that (2) Ms. Sima dudhoria was never authorized to represent them and had in effect colluded with the defendants. In the appeal, there was another attempt for holding the auction fresh in which certain process was undertaken but ultimately failed which would be apparent from different orders passed in this appeal. The matter travelled to the Apex Court but ultimately the matter was remanded since the appeal was against the interim order. In this Court terms of settlement was put in, but after the attempt of sale failed, the terms of settlement was also recalled. In this process, another question cropped up with regard to the participation in the sale through groups or individually. The defendants resisted individual participation in the auction and insisted upon group participation while the appellant resisted group participation and insisted upon individual participation and intended us to permit individual participation. ( 4 ) HAVING regard to the facts and circumstances of this case, the question of participation in the auction individually or as a group would arise only if the order appealed against is set aside and not otherwise. Therefore, we would propose to take up the question as to whether the order appealed against is liable to be set aside or not. ( 5 ) ADMITTEDLY, Rajesh Khaitan and Co. was representing the plaintiffs throughout the suit. Mr. A. P. Agarwalla on behalf of Rajesh Khaitan and Co. was conducting the case on behalf of the plaintiffs. In the auction, Mr. Agarwalla was present along with Ms. Sima Dudhoria. It appears from the proceedings of the auction at page 189 of this Paper Book that Mr. A. P. Agarwalla, Advocate with Ms. Sima Dudhoria participated in the proceeding for auction. She had submitted in the said proceedings that she was authorized to attend the meeting on behalf of the plaintiffs. But, she declined to participate in the bid. It appears from the proceedings of the auction at page 189 of this Paper Book that Mr. A. P. Agarwalla, Advocate with Ms. Sima Dudhoria participated in the proceeding for auction. She had submitted in the said proceedings that she was authorized to attend the meeting on behalf of the plaintiffs. But, she declined to participate in the bid. However, she received payments on behalf of the plaintiff No. 1, which is at page 192 of the Paper Book. It appears that the earnest money in respect of the respective bids was paid through cheque handed over to plaintiff No. 1. Admittedly, these were handed over to Ms. Sima Dudhoria. From page 38 Annexure 'd' of the paper Book, it appears that Ms. Amita Dudhoria, the plaintiff No. 4, the appellant herein had addressed a letter dated 24th July, 1997 to her Advocate-on-record seeking information with regard to the development that took place in the suit during the period of her absence till 17th July, 1997. In the application for setting aside the sale, she had pointed out that she was away for almost one year till July, 1997 from Calcutta on account of her mother's illness for which she stayed at Delhi during all these period. In reply to this letter, her learned advocate-on-record sent a letter dated 30th July, 1997, which is at page 40 of the Paper Book (Annexure 'e' ). The said letter disclosed that notices were all along being served upon the learned Advocate-on-record for the plaintiffs. The learned Advocate-on-record for the plaintiffs continuously attempted to contact the plaintiffs, letters were sent to the known address by the Advocate-on-record without any response. It was also pointed out that telephone calls were also made unsuccessfully and the plaintiffs had never called back. It was only at the last stage that Ms. Sima Dudhoria responded and from her the change of the addresses and telephone numbers of the plaintiffs particularly, the appellant could be found out by the Advocate-on-record. Thus till the participation in the auction, the Advocate-on-record did not have any inkling that Ms. Sima dudhoria was allegedly acting against the interest of the plaintiffs. ( 6 ) AT the same time, the plaintiffs had never blamed their Advocate-on-record though changed their Advocate-on-record. The questions as to whether ms. Thus till the participation in the auction, the Advocate-on-record did not have any inkling that Ms. Sima dudhoria was allegedly acting against the interest of the plaintiffs. ( 6 ) AT the same time, the plaintiffs had never blamed their Advocate-on-record though changed their Advocate-on-record. The questions as to whether ms. Sima Dudhoria was really authorized or not or whether she had acted against the interest of the plaintiffs or that she had colluded with the defendants is a question which requires proof. The plaintiffs though had been continuously staying out of station and the case was being continued and it was alleged that the appellant and one Ms. Sheela Jain were looking after the case and the said ms. Sheela Jain was staying in USA and the appellant had been to Delhi, yet they did not take any step to inform their Advocate-on-record about the telephone number and address. There is also nothing to show that the appellants had ever attempted to contact their Advocate-on-record and enquire about the proceedings. This is not a case of absence of notice but it is a case of non-attendance in the proceedings. It appears from the letter addressed by the advocate-on-record for the plaintiffs that they had tried their best to communicate to and seek instructions from the plaintiffs. Therefore, the question becomes a question of attempt to pursue the process or taking part in it. This is a question of diligence, which is to be examined. After having slept over the matter for a long time, one is not supposed to wake up subsequently and allege that they were not aware of the proceeding. At the same time, the other plaintiffs have also not joined the present appellant, though the plaintiff No. 1 had filed the other appeal separately to support the plaintiff No. 4, the appellant herein. ( 7 ) IN such circumstances, it appears that the plaintiffs themselves are not cohesive in their own conduct in between themselves. The learned Single Judge in the order had dealt with this question and on facts even with regard to the subsequent proceeding. The Court had noticed the conduct of the parties and had held that if some party did not appear because he or she did not choose to appear, then it would not be a question of absence of notice. Mr. The Court had noticed the conduct of the parties and had held that if some party did not appear because he or she did not choose to appear, then it would not be a question of absence of notice. Mr. Deb had also pointed out from the minutes of the Commissioner of Partition that notices were issued to plaintiff Nos. 1,4 and 6 by the Commissioner of Partition himself, posted under Certificate of Posting. At the same time, notices were given to the respective Advocate-on-record for the parties. Until then the Advocate-on-record for the plaintiffs were not instructed otherwise. ( 8 ) ONE is not supposed to sleep over throughout and wake up at a subsequent stage and disown the action on the part of one of them. One is not entitled to sit on the fence or wait on the fringe and assail the outcome. In the present case, the suit was being fought between the parties in two groups all-through. Suddenly, one among the one group discovers herself isolated and put forth an individual claim without being supported by others and with a belated indirect support by another who did not support her until the proceedings initiated is over. It appears that one of the groups is setting up one of themselves as individual one after the other and then one of them claiming individual interest without the group when the others had not joined her. The facts appear to be appalling. The appellant had got herself represented by her Advocate-on-record through the group and did not do anything till the auction was over. When she had alleged that she and Ms. Sheela Jain were looking after the case and that ms. Sheela Jain was staying in USA, then the appellant was expected to take care and caution in the matter in the absence of Ms. Sheela Jain. A person of ordinary prudence would have definitely left the address and telephone number with the Advocate.-on-record or was expected to contact the Advocate-on-record from time to time. This was a case of diligence, which was absent in the appellant or the plaintiff No. 1, who did not assail the sale or had never asked for setting aside the sale until the sale was confirmed despite the plaintiffno. 4/appellant having made the said application. This was a case of diligence, which was absent in the appellant or the plaintiff No. 1, who did not assail the sale or had never asked for setting aside the sale until the sale was confirmed despite the plaintiffno. 4/appellant having made the said application. At the same time, none of the others in the group had alleged absence of notice or their grievances to the auction sale. In these circumstances, it would not be permissible to allow one of them in the group to claim interest for her own individual without the group and against the interest inter se the plaintiffs. The suit was never a suit for partition in between inter se the plaintiffs and the shares of each individual plaintiffs were not declared individually neither the decree for partition provided for allotment of properties individually to any of the members of the group. In such a circumstance, it cannot be said that the appellant did not have notice when her advocate-on-record was representing her and all attempts of her Advocate-on-record to contact had failed and that she had never cared to impart any instruction to her Advocate-on-record, particularly, in a case where she had made the application alone without taking with her the other plaintiffs and the other plaintiffs neither did make the application nor had supported her. That apart, in the appeal, fresh auction was held and the amount of the bid was Rs. 10 lakhs and the appellant had bade Rs. 10. 5 lakhs, but when asked to deposit the amount, she asked for six months time and the Court had found that she was not really interested in the bid but in delaying the process. The learned single Judge had deliberated on all these questions and had come to the conclusion that the appellant was unable to make out a case for setting aside the sale, and, in our view rightly. ( 9 ) THUS, we do not find any reason to interfere with the order appealed against in the absence of any diligence on the part of the appellant in this appeal in conducting the process. The appeal (APO No. 596 of 1997), therefore, fails and is accordingly dismissed. ( 9 ) THUS, we do not find any reason to interfere with the order appealed against in the absence of any diligence on the part of the appellant in this appeal in conducting the process. The appeal (APO No. 596 of 1997), therefore, fails and is accordingly dismissed. ( 10 ) THE other appellant, the plaintiff No. 1, had never shown her diligence in the matter except by preferring an appeal against the order refusing to set aside the sale and confirming the sale. There is nothing to indicate that the plaintiff No. 1 had supported the appellant-plaintiff No. 4 or had joined her at any point of time. Therefore, she cannot succeed in her appeal. The other appeal being APOT No. 71 of 1998 is also hereby dismissed. ( 11 ) THERE will, however, be no order as to costs. ( 12 ) AFTER this order is passed, the respective learned counsel for the appellant in the respective appeal pray for stay ofoperation of this order. This is objected to by the learned counsel for the respondents, and, we feel, rightly. Yet as prayed for, the operation of the order is stayed for a period of 4 (four) weeks from date. ( 13 ) IN the result, both the appeals, being APO No. 596 of 1997 and APOT no. 71 of 1998 hereby stand dismissed as above. ( 14 ) ALL parties concerned are to on a xerox signed copy of this Dictated Order on the usual undertaking. Appeals dismissed. .